‘Biology Is Not Bigotry’

‘Biology Is Not Bigotry’

Here’s an excerpt from the excellent amicus brief submitted on behalf of Ryan T. Anderson in the Title VII SOGI cases:

Respondents and their amici contend that any policy that adverts to sex must discriminate because of sex. Only in this way are they able to give Title VII a scope that for decades no one would have ascribed to it. And in the process, they are forced to rely on confused theories of discrimination and of sex. Over and over, Respondents and their amici offer crucially flawed analogies, comparators, and analyses that effectively read the words “discrimination,” “disadvantageous,” and “comparable terms” out of the law altogether. This distorted reading leads to absurd and costly results that cut against the balance Congress struck in crafting Title VII.…

As this Court explained in Oncale v. Sundowner Offshore Services, Inc., Title VII requires “neither asexuality nor androgyny.” It requires equality and neutrality. It forbids double standards for men and women—policies that disfavor at least some individuals of one sex compared to similarly situated members of the other. So, as the Court unanimously held in Oncale, quoting Justice Ginsburg: “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” This Ginsburg reading, embraced by the whole Court, remains valid. And yet Respondents and their amici explicitly reject it, as their position requires. This Court should hold fast to the Ginsburg reading—on which Title VII violations consist of double standards for women and men.…

Title VII forbids discrimination—in a word, unfairness—because of sex. It excludes, not just any sex-conscious standards, but double standards. Yet Respondents and their amici urge the Court to adopt a theory of sex discrimination that would rule out (as discriminatory) any policies that advert to sex, rather than only those sex-related policies that result in “disparate treatment of men and women,” where members of one sex suffer under “disadvantageous terms” that the other does not. That would lead to asexuality and androgyny.

Adopting Respondents’ theory … would require either the elimination of all sex-specific programs and facilities or allow access based on an individual’s subjective identity rather than their objective biology. That Respondents and their amici are evasive about which of these outcomes is required by their theory is telling. Making its implications explicit would prove decisively that their reading is unsound.

It would also highlight the severe consequences for privacy, safety, and equality. Employers would be prevented from protecting their employees’ privacy and would be exposed to ruinous liability. They would have to cover objectionable medical treatments. Physicians would have to perform them against conscience. And the consequences would not be limited to the employment context. If this new theory of sex and of discrimination is imposed on Title VII, then why not Title IX? A Respondent-friendly reading of sex discrimination would spell the end of girl’s and women’s athletics, along with private facilities at school.…

Biology is not bigotry; this Court should not conclude otherwise. Only Congress, not this Court, can craft policy to address sexual orientation and gender identity—concepts distinct from sex—with attention to all the competing considerations.

Recommended Articles

Most Popular

To a certain kind of Rachel Maddow viewer, there are few more titillating preludes to a news segment than the one she delivered Monday: “If you have not seen it yet, you are going to want to sit down.”
Maddow’s story began, as many of her stories do, with President Trump, this time focused on his hotel ...
Read More

Federal prosecutors in Washington have recommended that criminal charges be filed against Andrew McCabe, the FBI’s former deputy director, and the Justice Department has rejected a last-ditch appeal by McCabe’s lawyers, according to a report on Thursday by Fox News. This clears the way for what appears to be ...
Read More

Early Monday morning, Donald Trump tweeted: “94% Approval Rating in the Republican Party, a record. Thank you!”
Where the president got this specific number remains a mystery. Recent polls by YouGov put his GOP approval roughly ten points lower, and Gallup, which has tracked Trump’s popularity since he ...
Read More

Making the click-through worthwhile: Why last night’s Democratic presidential primary debate was so bad; a suddenly hot issue that surprisingly never came up last night; an important and under-discussed detail about that Trump resort in Scotland; and a very important appointment for this weekend.
The ...
Read More

When John Bolton left his job as national security adviser -- President Trump says he fired him, Bolton says he quit -- the secretary of the Treasury, Steven Mnuchin, weighed in. “The president’s view on the Iraq War and Ambassador Bolton’s was very different,” he said. Yes, they were very ...
Read More

If you haven’t read Politico’s lengthy investigative report on Jerry Falwell Jr.’s conduct as president of Liberty University, published earlier this week, I’d urge you to do so. It’s a sordid tale of the self-dealing, personal ambition, and extreme intolerance for dissent that’s long been an open ...
Read More

In a 2018 midterm election that didn’t give Republicans a lot to laugh about, one development that no doubt left them smiling was watching progressives across the country donate $80 million to Beto O’Rourke, in a Texas Senate race that was always going to be a steep uphill climb. Democratic party leaders can ...
Read More